FPSLREB Decisions

I. Individual grievances referred to adjudication

1  On November 25, 2006, George A. Churcher (“the grievor”), an engineer classified at the ENG-04 group and level at the Department of Fisheries and Oceans (“DFO” or “the employer”) in Victoria, British Columbia, filed a grievance after the employer decided to recover overpayments of excess vacation leave credits that he received from 2001 to 2005. He alleges that recovering the overpayments is contrary to clause 14.03 of the collective agreement between the Treasury Board and the Professional Institute of the Public Service of Canada (PIPSC) for the Architecture, Engineering and Land Survey Group, which was signed on January 26, 2006 and expired on September 30, 2007 “the collective agreement”. As well, the grievor alleges that recovering the overpayments is contrary to the doctrine of estoppel and that it constitutes disciplinary action.

2 As corrective action, the grievor requests that the employer reimburse him for the overpayments that have been recovered.

3 On July 23, 2008, the grievor filed a second grievance after he received a five-day suspension without pay for accepting overpayments. The employer alleged that he knew that he was not entitled to them.

4 As corrective action for the second grievance, the grievor requests that he be compensated for all salary and benefits lost as a result of the five-day suspension without pay. He also requests that the letter of suspension and any related correspondence be removed from his personnel file.

5 On January 16, 2009, I agreed to a request by both parties to hear the two matters together.

6 The employer called 3 witnesses and filed 28 exhibits. The grievor testified, and his representative filed five exhibits.

7 Although the parties met on numerous occasions before the hearing, they were unable to agree on the correct dollar amount to account for the overpayments and the vacation leave taken by the grievor. At the hearing, they agreed that the amounts reflected in Exhibit E-22 would be considered factual. Exhibit E-22 reads as follows:

Item	Fiscal Year	Vacation			Vacation Leave balance	Total Utilization	Gross $ value of Overpayment
		Period	Credit	Debt
	Carry over	2000-2001	111.62***
	allotment	2000-2001	155		111.62+155 =266.62
1	2000/2001	May 11, 2000		8.33
2	2000/2001	Dec 18 -20, 2000		25
3	2000/2001	Jan 15 -18, 2001		33.32		66.65
	Eligible Payout	2000-2001 no record of payout
	Actual Payout	No payout issued
	Payout variance
	Carry over	as agreed by employee & compensation	199.97
	allotment	2001-2002	167.5**		199.97+167. 5=367.47
4	2001/2002	May 23-24, 2001		16.67
5	2001/2002	October 4, 2001		8.33
6	2001/2002	Nov 28-29, 2001		16.66
7	2001/2002	Dec 27-28,2001		16.33		57.99
	Eligible ,Payout	367.47-57.99-309.48 309.48-262.5*=46.98
8	Actual Payout	as confirmed by cheque register 6631-02945996		117.47
	Payout variance	117.47-46.98 =	70.49				$2,547.20
	Adjusted Carry over		262.5*
	allotment	2002-2003	187.5		262.5+187.5 =450
9	2002/2003	August 30, 2002		8.33
9	2002/2003	Sep 3-5,2002		25
9	2002/2003	Sep 9-13,2002		41.7
9	2002/2003	Sep 30-0ct 3, 2002		33.3
10	2002/2003	October 7, 2002		8.33
11	2002/2003	January 9, 2003		8.33		124.99
	Eligible Payout	450-124.99-325.01 325.01-262.5=62.51
12	Actual Payout	as confirmed by cheque register 6631-03705322		187.5
	Payout variance	187.5-62.51=	124.99				$4,795.37
	Adjusted Carry over		262.5
	allotment	2003/2004	187.5		262.5+187.5 =450
13	2003/2004	May 26-28,2003		25
14	2003/2004	Aug 5-29, 2003		142.5
15	2003/2004	Sep 11-26, 2003		90
16	2003/2004	October 17, 2003		8.33
17	2003/2004	Jan 2-8, 2004		41.65		307.48
	Eligible Payout	450-307.48-142.52 therefore not entitled
18	Actual Payout	as confirmed by cheque register 6631-04354202		55.85
	Payout variance	not entitled	55.85				$2,196.32
	Adjusted Carry over		142.52
	allotment	2004/2005	187.5		142.52+187. 5=330.02
19	2004/2005	May 31 -Jun 2, 2004		25

 

Item	Fiscal Year	Vacation			Vacation Leave balance	Total Utilization	Gross $ value  of Overpayment
19	2004/2005	Jun 23 -25, 2004		25
20	2004/2005	Aug 12 -Sep 7, 2004		127.5
21	2004/2005	October 15, 2004		8.33
22	2004/2005	Jan 3-7, 2005		41.65
23	2004/2005	Feb 10-11, 2005		16.66		244.14
	Eligible Payout	330.02-244.14-85.88 therefore not entitled
24	Actual Payout	as confirmed by cheque register 6631-05146755		60
	Payout variance	not entitled	60				$2,418.52
	Adjusted Carry over		85.88
	allotment	2005/2006	187.5		85.88+187.5 = 273.38
	one-time allot. Article 15.18	2005/2006	37.5
25	2005/2006	Apr 18 -19,2005		16.67
26	2005/2006	April 28, 2005		8.33
26	2005/2006	May 2 -20, 2005		112.5
26	2005/2006	May 24 -27, 2005		30
27	2005/2006	Aug 22 -24, 2005		25
28	2005/2006	Sep 6 -Oct 3, 2005		150
29	2005/2006	October 14,2005		8.33
30	2005/2006	Dec 21 -22, 2005		16.67
30	2005/2006	Dec 28 -30, 2005		25		392.5
	Eligible Payout	273.38-392.5 = -119.12 therefore not entitled
	100ai overpayment						$11,957.41
	overutilization	2005/2006	-119.12
	overutilization	One-Time Allot applied to overutilization ­119.1 +37.5=	-81.2

* maximum carry-over per Collective Agreement Article 15.07 is 262.5 hrs
**vacation allocation is based on number of years employee has worked Article 15.01
***based on information provided by employee
Item # refers to leave forms and/or pay register/cheque documents.
Highlighted lines were leave forms entered into PeopleSoft prior to review

[Emphasis in the original]

8 Clause 14.03 of the collective agreement reads as follows:

14.03 The amount of leave with pay credited to an employee by the Employer at the time when this Agreement is signed, or at the time when the employee becomes subject to this Agreement, shall be retained by the employee.

II. Summary of the evidence

9 Wai Leung was Manager, Technical Support, Real Property and Technical Support Division, DFO Pacific Region, and the grievor’s immediate supervisor from April 2001 until Mr. Leung retired in December 2008. Mr. Leung’s office was located in Vancouver, and the grievor’s office was in Victoria, B.C.

10 Mr. Leung began his testimony by explaining the leave reporting process in place at the DFO at the relevant times. Before 2000, employees submitted leave requests by completing a “Leave Application and Absence Report” (LAAR), which would be approved by the authorized officer and then forwarded to Human Resources (HR). In fiscal year 2000-2001, the DFO began using the PeopleSoft Leave Self-Service (“PeopleSoft” software application). As a result, users (employees and managers) could submit and view all their transactions and balances online.

11 Mr. Leung stated that, of the 19 employees who reported to him, the grievor was the only one who refused to use PeopleSoft. The grievor continued to fill out LAARs, which Mr. Leung accepted. The grievor would complete a LAAR and fax it to Mr. Leung. Mr. Leung would sign and date (approve) the LAAR and fax it back to the grievor. Mr. Leung noted that he kept copies of all the grievor’s LAARs in a file in his office.

12 Mr. Leung was referred to a memo that the grievor sent him on June 4, 2001 (Exhibit E-3). The grievor was asking to amend vacation leave that Mr. Leung had approved for August 2001. Mr. Leung approved the grievor’s request and faxed the memo back to him with the following note: “[P]rocess these through HR yourself.”

13 Mr. Leung testified that, although most of the grievor’s leave requests and Mr. Leung’s approvals were fax transactions, on occasion, when the grievor was in Vancouver on business, Mr. Leung would verbally approve his leave requests.

14 Mr. Leung also testified that it was his understanding that, once he approved the grievor’s LAARs and returned them to him, the grievor would forward them to HR and maintain a record of his balances.

15 Mr. Leung was referred to another memo that the grievor sent to him on August 27, 2002 (Exhibit E-4). The grievor was again requesting to amend vacation leave that Mr. Leung had approved on May 21, 2002. Mr. Leung again approved the grievor’s request and faxed the LAAR back to him. He noted that the grievor had indicated the following in his memo: “I will make the changes/amendments necessary with Personnel,” and assumed that he would do so.

16 Mr. Leung stated that, in early May 2006, he and Bonnie Richardson, Labour Relations Advisor, Corporate Services Real Property and Technical Service Group, North Coast Sector, DFO, met and discussed the grievor’s refusal to use PeopleSoft.

17 At that meeting, Ms. Richardson asked Mr. Leung if he had compared the grievor’s leave balances recorded in PeopleSoft with his completed and approved LAARs. He replied that he had not and gave Ms. Richardson a copy all of the grievor’s LAARs that he kept in his file. Ms. Richardson decided to forward them to the DFO’s compensation unit for a reconciliation review. Mr. Leung confirmed that he was not involved in the review.

18 After the reconciliation review, Ms. Richardson advised Mr. Leung that, from 2001 to 2005, the grievor had received a number of overpayment cheques for excess vacation leave credits to which he had not been entitled.

19 Mr. Leung agreed that clause 15.07(a) of the collective agreement allows an employee to carry-over to the following vacation year unused vacation leave, up to a maximum of 262.5 hours. At the end of every fiscal year, credits in excess of those hours are paid out in cash. Clause 15.07(a) reads as follows:

Carry-Over Provision

15.07

(a)      Where in any vacation year all of the vacation leave credits to an employee has not been scheduled, the employee may carry over into the following vacation year up to a maximum of two hundred and sixty-two decimal five (262.5) hours credit. All vacation leave credits in excess of two hundred and sixty-two decimal five (262.5) hours will be paid in cash at the employee’s daily rate of pay as calculated from the classification prescribed in the employee’s certificate of appointment of the employee’s substantive position on the last day of the vacation year.

20 Mr. Leung identified Exhibit E-5 as emails exchanged between himself, the grievor and Greg Caw, Acting Director, Technical Support, DFO, and the grievor. In an email dated January 20, 2005, Mr. Caw advised the grievor and Mr. Leung that, according to PeopleSoft, as of December 31, 2004, the grievor’s vacation leave balance was 322.5 hours. As such, the grievor had 60 hours above the maximum 262.5-hour carry-over limit. Mr. Caw requested that the grievor make arrangements with Mr. Leung to use those 60 hours before the end of the fiscal year.

21 Mr. Leung testified that, following Mr. Caw’s email, the grievor requested 16.67 hours of vacation leave for February 10 and 11, 2005. He stated that, in an email (Exhibit E-5), dated January 24, 2005, he had advised the grievor to submit, “as soon as possible,” vacation leave for the remaining 43.33 hours.

22 On January 31, 2005, the grievor faxed a LAAR to Mr. Leung requesting 150 hours of vacation leave to be taken in April and May 2005. That same day, Mr. Leung advised the grievor by email that he had to look into taking the remaining 43.33 hours before April 1, 2005, and he again asked him to respond “as soon as possible.” Later that afternoon, the grievor emailed Mr. Leung, stating that the 43.33 hours over the carry-over cap should be paid out if the “… DFO is unwilling to carry over to 2005/2006.”

23 On February 1, 2005, the grievor emailed Mr. Leung, advising that he no longer wished to take the 16.67 hours of vacation leave that he had requested for February 10 and 11, 2005. The grievor also stated that between May and September 2005, he would use his remaining vacation leave to ensure that “… this situation [over the cap payout] would not occur at the end of 2005/2006,” (Exhibit E-5).

24 On February 10, 2006, Mr. Leung emailed the grievor (Exhibit E-6), reminding him that he had 187.5 hours of vacation leave credits above the carry-over limit of 262.5 hours. He again requested that the grievor submit vacation leave before the end of the fiscal year (March 31, 2006) as there was no budget in the Technical Support Division to cash out extra hours.

25 On February 20, 2006, the grievor replied to Mr. Leung as follows:

…

My Understanding of the Collective Agreement is that payout of the leave in excess of the cap is the Employer’s prerogative, however, it is my choice whether I take the money or the vacation time. PIPSC Regional Office support this interpretation.

I have some length vacation booked for the coming summer. I recently paid some hefty repair bills for my personal vehicles.

I am presently quite busy with RPTS Fuel Tank Plan and CCG NCSP N65N2 workload. The clients would not be pleased to have that work deferred for an extended period.

I prefer to take the money, which I understand will happen if we simply do nothing with regard to additional Leave Requests.

…

[Sic throughout]

26 On August 1, 2006, Mr. Leung sent the grievor another email stating the following: “From the very beginning, I had instructed you to submit your leave request forms to Compensation after I approved them.” Within a few minutes, the grievor replied that “… [t]he Supervisor is to forward copy 1 to Personnel Pay and Benefits. The instruction seems pretty clear on allocation of responsibility for processing of forms, once approved.” (Exhibit E-7).

27 In cross-examination, Mr. Leung agreed that the grievor had worked a lot of overtime and that most of it was paid, although on most occasions the grievor requested compensatory leave instead of payment for overtime.

28 Mr. Leung was shown a copy of a LAAR that the grievor had submitted for approval (Exhibit E-2) and was referred to bullet 3 of the LAAR (“At month end, both the supervisor and the employee review and sign the form.”) and to bullet 4 (“[T]he supervisor is to forward copy 1 to Personnel Pay and Benefits.”). Mr. Leung admitted that he had not followed those instructions.

29 In redirect, Mr. Leung noted that an employee may take leave (excluding sick leave) only after it has been approved by the employee’s supervisor.

30 Ms. Richardson testified next. She stated that, in early May 2006, she and Mr. Leung had discussed the grievor’s refusal to use PeopleSoft. She noted that, during the discussion, she was advised that the grievor was going to be paid 187 hours (7 weeks) of vacation leave for fiscal year 2005-2006. She explained that at the end of every fiscal year PeopleSoft automatically generates a cheque for vacation leave hours in excess of the 262.5-hour carry-over limit.

31 Ms. Richardson also testified that, in the grievor’s case, for fiscal year 2005-2006, PeopleSoft indicated that he had 187 hours of vacation leave over and above the 262.5-hour limit. As a result, a cheque for $4 589.39 was automatically generated (Exhibit E-21).

32 Ms. Richardson reviewed the grievor’s LAARs, which she had received from Mr. Leung. She noticed that there was a discrepancy with the balances recorded in PeopleSoft. Therefore she cancelled the cheque and asked Larry Robertson, a compensation advisor at the DFO, to initiate a compensation review of all vacation leave taken by the grievor.

33 Exhibits E-17 to E-20 were introduced through Ms. Richardson. The parties agreed that the exhibits reflect the cheques received and cashed by the grievor from 2001 to 2005. The amounts are as follows:

Exhibit E-17	2001/2002	$2 513.26 net
Exhibit E-18	2002/2003	$3 946.52 net
Exhibit E-19	2003/2004	$1 172.17 net
Exhibit E-20	2004/2005	$1 456.53 net
TOTAL		$9 088.48

[Emphasis added]

34 Ms. Richardson testified that she created Exhibit E-22 as a spreadsheet, itemizing all the grievor’s leave credits for fiscal years 2001 to 2006. The spreadsheet includes the detailed calculations that were used to determine the payments for vacation leave in excess of 262.5 hours that were paid to the grievor. Ms. Richardson stated that the total gross overpayment to the grievor was $11,957.41.

35 Ms. Richardson testified that, at the grievor’s request, Lana Kainz, a staffing assistant at Integrated Technical Services, Canadian Coast Guard, Victoria, B.C., assisted him by entering six sick leave, two vacation leave and one compensatory leave requests through PeopleSoft in 2002, 2003 and 2004 (Exhibit E-23). Ms. Richardson stated that, although the grievor preferred to complete a LAAR, he was familiar with PeopleSoft as he would have to provide his password to Ms. Kainz to log on to the system.

36 Ms. Richardson identified Exhibit E-24 as a memo that Ms. Kainz sent to her on July 16, 2008. In it, Ms. Kainz confirmed that she had, in the past and at the grievor’s request provided him with his leave balances recorded in PeopleSoft.

37 Ms. Richardson testified that, since 2001, before the end of every fiscal year, a message is posted on the DFO’s intranet site (called “In the Loop”) advising employees to verify their leave transactions and balances (Exhibit E-13). Exhibit E-13 reads as follows:

…

Reminder - LEAVE YEAR END CASH OUT PROCESS

We’d like to take this moment to remind all employees and managers about the fiscal year end leave cash out process. As you may already know, your collective agreement is the legal authority that dictates the liquidation of compensatory leave as well as vacation leave credits that surpass allowable limits.

Through this message, we are inviting all of you to verify your leave balances and then refer to your collective agreement, by clicking the link below, to determine if you exceed the limits set out. This simple verification will facilitate the liquidation of excess credits and eliminate surprises on March 31, 2004 when compensation offices must proceed with the leave year end cash out exercise.

…

38 Ms. Richardson stated that, after the reconciliation review, Paul Macgillivray, Associate Regional Director General, Pacific Region, DFO, asked her to determine the grievor’s culpability associated with the overpayments that he received for the years 2001 to 2005.

39  On October 29, 2007, a meeting took place with the grievor; his bargaining agent representative, Evan M. Heidinger, Mr. Macgillivray and Ms. Richardson to determine if the grievor had accepted the overpayments while knowing that he had not been entitled to them.

40 Ms. Richardson noted that, although the grievor did not use PeopleSoft when requesting vacation leave, he had used it to enter overtime and all but two sick leave requests.

41 Ms. Richardson concluded her testimony by stating that the grievor did not accept any responsibility for the overpayments and that he had made no effort to inform management that there might have been an error in his receiving the overpayments. She stated that, as an engineer, he is responsible for projects involving several million dollars. Therefore, he should have known that he was not entitled to the overpayments, or at the very least, he should have inquired as to why he was receiving them.

42 In cross-examination, Ms. Richardson agreed that Mr. Leung had to retain a copy of the LAAR as described in bullet 1 of the LAAR. She also agreed that, according to bullet 3 of the LAAR, at month’s end the supervisor and the employee had to review and sign the LAAR. However, she noted that, in the grievor’s case and with respect to bullet 4 of the LAAR, Mr. Leung had instructed the grievor to process the approved LAARs with HR directly (Exhibit E-3).

43 Ms. Richardson testified that the -119.12 hours found on page 2 of the spreadsheet found in Exhibit E-22 reflects an over use of vacation leave credits for fiscal year 2005-2006. She explained that, with PeopleSoft, a fiscal year cannot begin with a negative balance. In 2005-2006, the grievor took more vacation leave than he was entitled to, and the employer wrote off the -119.12 hours and the related dollar amount, which was not reflected in the total gross overpayment that he received of $11,957.41.

44 Ms. Richardson did not dispute the inference by the grievor’s representative that Mr. Leung had never instructed the grievor that it was mandatory for him to use PeopleSoft and that he could not continue submitting LAARs. She agreed that headquarters had sent no clear directive that employees were obligated to use PeopleSoft.

45 Mr. Robertson testified that he sent the grievor a memo on August 30, 2006, (Exhibit E-26) advising him that salary overpayments are a debt to the Crown and that recovering overpayments is not contingent on the employee’s approval. The authority to recover overpayments is stated in the Financial Administration Act (FAA) and the Pay Administration Guidelines, specifically in section 155(1) of the FAA. Mr. Robertson also informed the grievor that the overpayments would be recovered at the rate of 10 percent of his gross bi-weekly pay ($353.06) (Exhibit E-25).

46 Mr. Robertson testified that the grievor also received a compensatory leave overpayment of $2400.00, which was not included in the $11,957.41 overpayment cheques he received.

47 Mr. Robertson stated that, following the introduction of PeopleSoft, employees were requested to submit their leave requests electronically. However, there were a few exceptions, notably employees who worked in fish hatcheries, lighthouses and ships’ crews, since they did not have access to computers. Those employees would complete a LAAR, and the leave would then be entered into PeopleSoft by an assistant.

48 In cross-examination, Mr. Robertson stated that he was unaware that the grievor was continuing to submit LAARs rather than using PeopleSoft.

49 Mr. Robertson testified that he is bound by the FAA, and if there is a perception that the collective agreement conflicts with the legislation, then he will seek clarification or an interpretation from Treasury Board personnel.

50 Mr. Robertson agreed that the message conveyed to employees on the DFO’s intranet site (Exhibit E-13) requests that an employee submit his or her leave requests in PeopleSoft but does not specifically state that PeopleSoft has to be used.

51 In redirect, Mr. Robertson noted that before the end of every fiscal year employees are requested to verify their leave transactions and balances.

52 Mr. Macgillivray testified that, in May 2006, he became aware of the discrepancy between the grievor’s vacation leave balances when he compared the grievor’s LAARs to the balances recorded into PeopleSoft.

53 Mr. Macgillivray testified that recovering the overpayments was not a disciplinary action but that it was being done in accordance with the FAA.

54 Mr. Macgillivray stated that his decision to investigate the matter was made so that he could be clearly informed and be kept updated on all the facts. A number of meetings were held with the grievor and his bargaining agent representative.

55 Mr. Macgillivray stressed that he followed the Treasury Board’s disciplinary guidelines, which he understood to mean that, if discipline is warranted, it is to be a corrective measure rather than punitive.

56 Mr. Macgillivray confirmed that on July 11, 2008, he sent a letter to the grievor explaining the reasons for his decision to impose a five-day suspension without pay (Exhibit E-28). His conclusion was that the grievor wilfully adopted a strategy of not inquiring about his vacation leave balances to remain uninformed and thus receive overpayments to which he was not entitled (Exhibit E-28). Mr. Macgillivray concluded that, in the circumstances, a five-day suspension without pay was appropriate.

57  Mr. Macgillivray’s testimony on his reasons for imposing the five-day suspension without pay parallels Exhibit E-28, which is the letter he sent the grievor on July 11, 2008 imposing the five-day suspension without pay. Exhibit E-28 reads as follows:

…

I am writing to inform you of my decision regarding culpability associated with leave overpayments paid to you during the period 2001/02 to 2005/06. As you are aware, the matter of your culpability in relation to this overpayment has been deferred for a number of reasons including your extended sick leave absences, as well as the difficulty encountered in coordinating your and your union representative’s availability to attend the required meetings with me.

I have now thoroughly reviewed all the relevant information. In addition to taking into account the points raised at our most recent meeting on June 3, 2008, I have carefully considered all the information provided by you, your union representative, your supervisors, Compensation Unit staff in Vancouver, and CCG Victoria Base administrative staff.

I have concluded that you share responsibility in the overpayment of leave which occurred over a period of five consecutive fiscal years. It is my view, that you wilfully adopted a strategy of deliberately not making enquiries about your leave balances when you should have, because you wished to remain uninformed. I believe that you wilfully accepted leave payouts over five fiscal years to which you were not entitled.

A significant factor contributing to this situation was the fact that you insisted on using a paper leave system despite your supervisor’s encouragement for you to use the departmental electronic PeopleSoft system. Therefore, you bore some responsibility for ensuring that the paper leave system worked effectively and accurately.

Furthermore, the joint responsibility of you and your supervisor to monitor leave balances is a requirement that has been communicated repeatedly through various communications with employees.

In light of your insistence not to use the PeopleSoft system, Mr. Leung, your past supervisor, has stated that he instructed you to submit approved “paper” leave forms (that he signed and returned to you) directly to the Compensation Unit for their input into the electronic PeopleSoft system. You failed to do so on a consistent basis. PeopleSoft records indicate that only some leave applications had been entered into the electronic system. I am aware that those applications were entered into the system by administrative staff, at your direction. This action would confirm your awareness of the need to have leave applications entered into the system. In addition, on one occasion you committed in writing to your supervisor to submit a leave form amendment to the Compensation Unit which you did not submit.

It is noteworthy that you adopted a different approach to dealing with overtime claims compared to your approach to leave applications and that no concerns have emerged associated with the accuracy of overtime payments. This may be due, in part, to your explanation to me that you had an incentive to ensure that your overtime claims were entered accurately and on a timely basis.

You have told me repeatedly that the reason you did not use the PeopleSoft system was because you did not trust your supervisors. Specifically, you wanted to have a paper record of your leave in case of disputes with your supervisors concerning your whereabouts. I find this explanation difficult to accept for two reasons. Firstly, you said that after submitting paper leave forms, you did not receive a copy signed (approved) by your supervisor. Secondly, you did not verify that your leave balances were accurate at the end of each fiscal year. With respect to both of these points, it is difficult to reconcile the lack of trust in your supervisors that led you not to use the PeopleSoft system, with the complete trust you placed in these same supervisors. Your explanation of the approach you insisted on to have leave approved, resulted in you taking leave without have received written approval from your supervisor. In addition, you had confidence that approved leave forms you had never seen, were accurately reflected in generating your annual leave balances without you ever verifying them.

I am also concerned about the credibility of your explanation that when you received cheques, you did not know what they were for. Every cheque issued includes a “stub” detailing the reason for the cheque. Cheques for leave payouts include the number of hours. If you were uncertain why you were receiving a cheque it was incumbent upon you to seek clarification from either your supervisor or the Compensation Unit.

There are two separate occasions where, I believe, it would have been difficult for you not to know that you were receiving payments for vacation leave when you had, in fact, taken the vacation leave. In 2004/05 your annual allotment of vacation leave credits was 187.5 hours (25 days). That same year, your vacation leave usage was 244.14 hours (approximately 32 days) which significantly exceeded your yearly allotment. However, for that year you also accepted a cash payment in lieu of vacation leave of 60 hours (8 days).

The second occasion was during the period 2005/2006. In an email exchange at the end of January, 2005 regarding “liquidation of leave over cap” you communicated to your supervisor that you had requested sufficient leave for 2005/06 which would ensure that a carry-over situation would not re-occur in fiscal year 2005/2006. In a follow-up email dated February 1, 2005 you committed to “clear the backlogged vacation entitlement so that this situation did not re-occur at the end of 2005/2006”. You subsequently used 392.5 hours (55 days or 11 weeks) of vacation leave, effectively clearing the excess balance as you had committed. However, when you were notified on February 10, 2006 that excess vacation credits of 187.5 hours (over the 262.5 hours allowable cap) were still reflected in your vacation leave balance, you should have known the balance was incorrect. You had taken more than twice your annual vacation leave entitlement and you had a clear opportunity to correct this obvious error but you made no effort to take the proper action to ensure that the record was corrected.

This is significant to me, given the amount of leave you had taken in 2005/2006 (392.5 hours versus your annual allotment of 187.5 hours). It appears to me that you chose not to acknowledge the discrepancy and simply indicated to your supervisor in an email that you “would prefer to take the money”. Furthermore, when this error was later discovered and the Compensation Unit staff informed you that your 2005/06 vacation leave credits had been overused, you responded by stating that you were entitled to a payout, (email of June 14, 2006). I can only conclude that while you clearly understand your entitlement to annual vacation leave payouts for leave in excess of 262.5 hours, you deliberately chose not to bring the discrepancy to your manager’s attention.

I have carefully considered the mitigating circumstances which you have brought forward, including your claim that you had difficulty in using the electronic PeopleSoft system. I have also considered your manager’s responsibility in this matter in that he bore some responsibility in ensuring that the approved paper leave applications were entered into the PeopleSoft system. As well, I have considered your role in the Department as a Senior Project Engineer and the requirements of your profession. After reviewing all of this information, I find that your explanations for your conduct have remained incomplete and unacceptable. I am also concerned that you have not demonstrated any understanding or acceptance of your responsibility in this situation.

After consideration of all of the information, I have concluded that you accepted leave overpayments of $14,080.87 over the period from 2001 to 2005 even though you were aware that you had utilized the leave that resulted in the overpayments. Your failure to bring this matter to the attention of your supervisors, or to make appropriate inquiries that would be considered reasonable in these circumstances, represents a breach of trust warranting disciplinary action amounting to a five day suspension without pay to be served from July 28 to August 1, 2008 inclusive.

I am obligated to inform you that any further actions of misconduct may result in further disciplinary action up to and including termination of employment. Should you disagree with this decision, you have the right to file a grievance in accordance with the terms of your collective agreement. As per Article 38.04 of your collective agreement a copy of this letter will be placed on your Personnel file for a period of two years (from the date of issue) pending no further disciplinary action.

[Sic throughout]

…

58 Mr. Macgillivray testified that, before imposing the five-day suspension without pay, he considered a number of mitigating factors. He believed that responsibility for the overpayments was shared between the grievor and Mr. Leung. He stated that, when he met with Mr. Leung, Mr. Leung recognized that he should have been more diligent and that, by not doing so, he had contributed to the problem.

59  Mr. Macgillivray stated that, in stark contrast to Mr. Leung, the grievor did not accept any responsibility and stated that it was his supervisor’s responsibility to ensure that the approved LAARs were forwarded to HR. Mr. Macgillivray stated that, as an engineer, standards of ethical behaviour are expected of the grievor. Mr. Macgillivray confirmed that the grievor’s 23-year record of employment with no disciplinary infractions was also considered. The grievor never demonstrated or expressed any remorse, and he never questioned why he was receiving the overpayments. In other words, according to Mr. Macgillivray, the grievor was “wilfully blind” since he stood to gain monies to which he was not entitled.

60  Mr. Macgillivray reviewed several Public Service Labour Relations Board decisions involving cases of a similar nature and determined that the five-day suspension without pay was well within the norm. He also stated that he considered the five-day suspension without pay to be a corrective measure rather than punitive. He noted that Mr. Leung was not disciplined.

61 In cross-examination, the grievor’s representative asked Mr. Macgillivray why Mr. Leung had not been disciplined. He replied that, during a meeting, Mr. Leung accepted some responsibility, recognized what he should have done differently and admitted that he had contributed to the problem. Mr. Macgillivray stated that it was obvious that Mr. Leung had nothing to gain.

62 When asked whether there were any concerns about the grievor’s sick leave or overtime requests, Mr. Macgillivray replied that his only focus was the grievor’s vacation leave overpayments.

63 The grievor testified next. He explained that, as a senior project engineer, his duties include, in part, overseeing and managing large capital projects at several Canadian Coast Guard facilities. The projects involve capital expenditures ranging from $1 million to $25 million.

64  The grievor stated that he joined the public service with Transport Canada in December 1983. He testified that he continued his employment through the numerous permutations (name changes) that led to the current DFO. He confirmed that he reported to Mr. Leung from April 2001 until Mr. Leung retired. He also stated that he has been a long-term shop steward with the PIPSC and that he continues in that role to this day.

65 The grievor was referred by his representative to several emails dated December 7 to 10, 2001 (Exhibit G-3) exchanged between himself and Mr. Leung. The emails concerned a two-day risk management course to be held in Ottawa and offered by the Public Service Commission (PSC). The PSC had agreed to pay for the grievor’s four-day leave absence, which included two days for travel, to attend the course. Mr. Leung approved his request on September 26, 2001. On November 19, 2001, the grievor requested two days of vacation leave for November 28 and 29, 2001, to attend a National Union Management Consultation Committee (UMCC) meeting in Ottawa that coincided with the PSC course.

66 On December 7, 2001, Mr. Leung emailed to the grievor, expressing his concern that the grievor had not notified him that he would not be attending the Real Property Managers meeting scheduled for November 28, 2001. Mr. Leung was also concerned that, if the grievor were attending bargaining agent activities that day, the grievor should have informed him.

67 On December 10, 2001, the grievor replied to Mr. Leung, stating that the vacation leave that Mr. Leung approved on November 19, 2001, was for bargaining-agent-related activities.

68 Later that day, Mr. Leung informed the grievor that he had located the LAAR that he had approved but stated that he was not aware that the grievor was using vacation leave for bargaining-agent-related activities.

69 The grievor testified that he was not aware how approved leave was entered into PeopleSoft. He noted that, following the introduction of PeopleSoft, a number of bargaining agent members approached him to complain about the difficulties they had encountered in using it.

70 The grievor stated that he always faxed his LAARs to Mr. Leung for approval. However, Mr. Leung would sometimes fax them back to him and sometimes not. It was only in July 2006 that senior management directed him to submit his leave transactions through PeopleSoft.

71 The grievor disagreed with Mr. Leung’s testimony that Mr. Leung had instructed him to submit his LAARs to HR directly (Exhibit E-3). He also disputed Mr. Leung’s August 1, 2006 email (Exhibit E-7) in which he stated the following: “From the very beginning, I had instructed you to submit your leave request forms to Compensation after I approved them.”

72 The grievor testified that, before July 2006, he had never received verbal or written instructions that he had to forward his LAARs to HR. He referred to bullet 4 of the LAAR (Exhibit E-2), which states that the supervisor’s role is to forward a copy of the LAAR to Personnel Pay and Benefits. The grievor stated as an example that, when he was a supervisor (from 1995 to 2002) with seven employees reporting to him, when an employee submitted a LAAR, the grievor would approve the request, make a photocopy, forward the original to HR and give a copy to the employee.

73 When the grievor was referred by his representative to his comment that “I will make the changes/amendments necessary with Personnel,” in a handwritten note (Exhibit E-4), dated August 21, 2002 to Mr. Leung, he stated that he was “being a nice guy” since, because he had requested an amendment, he felt that he should forward the LAAR to HR.

74 The grievor admitted that, on several occasions, Ms. Kainz had assisted him in submitting amended leave requests through PeopleSoft and that, on several other occasions, at his request, she had also printed and given him his leave balances.

75 The grievor explained that, in 2001, there was a shortage of money in the Technical Support Division for purchasing new computers. At that time, he had a 1996 model, and since it had very little memory, he doubted that it would be able to run the PeopleSoft. In July 2006, additional memory was installed on his computer and PeopleSoft was installed. However, it would run for a while and then fail. In October 2007, he was provided with a new computer.

76 The grievor conceded that he had not monitored his leave balances in PeopleSoft and recognized that, in retrospect, perhaps he should have.

77  The grievor stated that, when he was informed by Mr. Leung on February 10, 2006 that he had excessive vacation leave credits for fiscal year 2005-2006 totalling 187.5 hours, he believed that the information was accurate since he did not access PeopleSoft to review his balances. The grievor stated that his response to Mr. Leung on February 20, 2006 (Exhibit E-6) was a flippant reply and that he recognized that it was probably an error on his part.

78 The grievor testified that he was very upset when he received Mr. Macgillivray’s letter of July 11, 2008 (Exhibit E-28) imposing the five-day suspension without pay. He stated that he did not wilfully or purposely adopt a strategy to remain uninformed as to his leave balance credits. He was unaware that Mr. Leung was not forwarding his LAARs to HR after he approved them. Therefore, he assumed that the balances provided by the employer at the end of the fiscal year were accurate. He also stated that he never received written or verbal instructions that he had to submit his LAARs to HR and that he had to maintain a record of his balances.

79 The grievor explained that, on occasion, he took vacation leave without receiving written authorization from Mr. Leung. However, he stated that it was the lesser of two evils and referred to Exhibit G-3, in which Mr. Leung questioned his use of vacation leave to attend bargaining-agent-related activities.

80 The grievor testified that he did not question why he was receiving overpayments since it was not unusual for him to receive several cheques per month for reimbursement of travel expenses and overtime incurred for business trips.

81 The grievor stated that he has always acted in an ethical manner and in good faith. He stated that he cannot assume any responsibility for the error in the overpayment cheques since he believes the responsibility rests with his employer. He concluded that, had he realized that an error had been made with his leave balances, he would have informed his supervisor, Mr. Leung. As such, he has no remorse since he has done nothing wrong. However, in hindsight he recognized that, had he been aware that Mr. Leung was not forwarding his approved LAARs to HR, he would have emailed Mr. Leung and instructed him that it was his responsibility to forward them to HR.

82 In cross-examination, the grievor agreed that he accepted the vacation leave overpayment cheques but noted that the cheque stubs did not indicate the number of hours that were being paid.

83 The griever also agreed that the employer reminded him every year to review his leave transactions and balances.

84 The grievor stated that, in 2006, he asked to be paid for the vacation leave hours over the 262.5-hour carry-over limit but that that decision was made following information that Mr. Leung provided to him. He did not question Mr. Leung’s information since he was not keeping track of his leave balances. He also stated that he was not negligent; he was unaware that management had given him the responsibility to forward all his LAARs to HR and, as such, he did not question the information that he received. The grievor explained that working for the federal government means accepting that the information provided by a supervisor is accurate and that it is provided in good faith.

85 The grievor agreed that in fiscal year 2005-2006 he took 392.5 hours (11 weeks) of vacation leave although his annual allotment was only 187.5 hours (5 weeks). When counsel for the employer suggested that the grievor’s email to Mr. Leung stating that, because of some hefty repair bills, the grievor still wanted to be paid the 187.5 hours over the 262.5-hour carry-over limit was not a “flippant response” but a “calculated response,” the grievor denied it.

86 The grievor stated that he had only asked Ms. Kainz once to check his leave balances on PeopleSoft.

87 When referred to Exhibit E-23, Ms. Kainz’s record of leave applications entered into PeopleSoft from 2002 to 2004, the grievor emphatically stated that “[s]he may have sent the LAARs to compensation but I didn’t ask her to.” When counsel for the employer pointed out that Ms. Kainz always put a smiley face on the LAARs that she entered into PeopleSoft, at that point the grievor stated that he could not recall if he had given those LAARs to Ms. Kainz.

88 When asked by counsel for the employer how he could confuse a cheque he received in May 2003 in the amount of $3946.52 for an overtime or travel claim cheque, the grievor replied that he had received cheques in the amount of $2600.00 once or twice a year as reimbursements for business trips.

III. Summary of the arguments

A. For the grievor (on PSLRB File No. 566-02-754)

89 The grievor’s representative argued that the employer has contravened clause 14.03 of the collective agreement. Clause 14.03 reads as follows:

14.03 The amount of leave with pay credited to an employee by the Employer at the time when this Agreement is signed, or at the time when the employee becomes subject to this Agreement, shall be retained by the employee.

90 The grievor has been a member of the bargaining unit since January 26, 2006, when the Treasury Board and the PIPSC signed the collective agreement. Therefore, the grievor had to keep his leave credits as of January 26, 2006, and therefore, clause 14.03 of the collective agreement prohibits the employer from retroactively recovering the vacation leave the grievor took and the vacation leave overpayments that he received.

91 The grievor’s representative maintained that the wording of clause 14.03 of the collective agreement is clear and that the employer has to apply the provision as it is written. Clause 14.03 has been in the collective agreement since 1995, and if the parties had concerns or wanted to modify or change the wording, they had numerous opportunities over the years to do so during the collective bargaining process.

92 In citing Williams v. Treasury Board (National Defence), PSLRB File No. 166-02-26410 (19951214), the grievor’s representative argued that, although the facts in this case are not identical, they are very similar. In Williams,the adjudicator determined that leave credited to the employee became subject to the next collective agreement and was to be retained. In the analysis of that case, the adjudicator noted that the relevant clause in the collective agreement did not state “leave earned” but rather “leave credited.” In the final paragraph, he noted the following: “If the parties wanted the clause to read ‘earned’ I assume they would have written it that way.”

93 It was the employer’s responsibility to ensure that, once approved, the grievor’s LAARs were forwarded to HR. The employer made an error, and the grievor was credited with excess vacation leave. The employer directed the grievor to use this vacation leave, which he did. Had he not taken the vacation leave, he would have had more vacation leave over the carry-over limit, and the vacation leave overpayments would have been larger.

94 The grievor relied on information provided by the employer, and by doing so, it was to his detriment since the employer then recovered $11,957.41 of vacation leave overpayments.

95 Mr. Robertson justified recovering the overpayments by referring to the Pay Administration Guidelines attached to his August 30, 2006 letter to the grievor (Exhibit E-26). The Pay Administration Guidelines are just that - guidelines - and they do not override the collective agreement.

96 In conclusion, the grievor’s representative stated that the grievor relied on the following information provided to him by the employer: the amount of vacation leave credits that he had the approval to take and the payout of the vacation leave credits over the 262.5-hour carry-over limit for a number of years. Therefore, the employer is stopped from recovering the overpayments that the grievor received.

B. For the employer (on PSLRB File No. 566-02-754)

97 Counsel for the employer argued that one cannot look solely at the wording of clause 14.03 of the collective agreement. One also has to determine the intent of the wording to avoid an absurd interpretation.

98 In this case, the grievor took 11 weeks of vacation leave in fiscal year 2005-2006. Mr. Leung advised the grievor that PeopleSoft indicated that he had 187.5 hours of vacation leave credits above the 262.5-hour cap. It would be absurd to assume by reading clause 14.03 of the collective agreement that, after the grievor took 11 weeks of vacation leave in a fiscal year, he would also be paid out an additional 187.5 hours because of an obvious mistake.

99 Counsel for the employer argued that, if the employer’s leave balances were incorrect and an employee had not taken vacation leave in a fiscal year, using the bargaining agent’s interpretation, the employer could say that the employee was not entitled to the vacation leave credits. Again, that is an absurd interpretation.

100 The bargaining agent’s interpretation of clause 14.03 of the collective agreement could open the door for employees to clearly and carefully orchestrate fraud by ensuring that approved leave forms are not forwarded to HR and then by claiming that they are entitled to overpayment cheques for excess vacation leave credits. That would be absurd; the employee would be paid twice.

101 The intent of the provisions found in clause 14.03 of the collective agreement is to protect legitimately earned vacation leave credits when new provisions are negotiated or added during the collective bargaining process.

102 In reply, the grievor’s representative stated that the wording of clause 14.03 of the collective agreement is perfectly clear. Although there may be unfortunate results, collective agreements are periodically renewed during collective bargaining and the wording revised for that reason.

C. For the employer (on PSLRB File No. 566-02-2643)

103 Counsel for the employer stated that, in a disciplinary case, two questions must be asked: What are the grounds for imposing disciplinary action and if there are valid grounds, is the sanction appropriate?

104 The grievor was not disciplined for not forwarding his LAARs to HR, although, it was considered. He was disciplined for wilfully accepting overpayments without asking what they were for. The grievor showed no remorse and took no responsibility for his actions. As an engineer in charge of projects involving millions of dollars, he ought to have known, when he received a large cheque that stated “leave/payment,” to contact his supervisor or HR for clarification.

105 Mr. Macgillivray stated that he considered the mitigating circumstances, including Mr. Leung’s responsibility and the grievor’s position within the organization, before he imposed the five-day suspension without pay. He reached the conclusion that the disciplinary sanction was well within the norm since the grievor accepted the overpayments but did not bring the matter to the attention of Mr. Leung or HR, and therefore, his actions represented a breach of the employer’s trust.

D. For the grievor (on PSLRB File No. 566-02-2643)

106 The grievor’s representative argued that the grievor has been employed in the public service for approximately 23 years with no prior disciplinary action taken against him.

107 The grievor’s representative stated that there may have been a mistake made on the grievor’s part but that there was no deliberate contravention or refusal and that there were no inappropriate acts on his part. Therefore, where is the misconduct?

108 The grievor testified that he received reimbursement cheques for travel expenses of $2600.00 and that he did not realize that the overpayment cheques were for excess vacation leave credits.

109 It was Mr. Leung’s responsibility to ensure that the approved LAARs were forwarded to HR. The grievor was unaware that Mr. Leung was not doing so. The grievor’s explanation for not issuing an apology or showing remorse is credible because he has done nothing wrong. There was no evidence adduced by the employer that the grievor was seeking to gain an advantage (overpayment cheques) by circumventing PeopleSoft.

110 In reply, counsel for the employer stated that the grievor’s long service and his disciplinary-free record were considered before the five-day suspension without pay was imposed. The suspension without pay was imposed not because of his refusal to use PeopleSoft but rather because of his negligent misconduct.

111 The employer referred me to the following cases: Bolton v. Treasury Board (Indian and Northern Affairs Canada), 2003 PSSRB 39; Ellement v. Treasury Board (Public Works and Government Services Canada), PSSRB File No. 166-02-27688 (19970611); Millar v. Treasury Board (Human Resources Development Canada), 2001 PSSRB 120; Faryna v. Chorny, [1952] 2 D.L.R. 354; and Potvin v. Treasury Board (External Affairs Canada), PSSRB File No. 166-02-23870 (19940318).

IV. Reasons

Onus

112 Note that the parties agreed that, for to PSLRB File No. 566-02-754, the onus of proof rested with the grievor and that, for PSLRB File No. 566-02-2643, it rested with the employer.

A. First grievance (PSLRB File No. 566-02-754)

113 On November 25, 2006, the grievor filed this grievance alleging that, as a result of his compliance with his supervisor’s written and verbal instructions to take vacation leave, which were based on incorrect information and the improper administration of his LAARs, the recovery of $11,957.41 in vacation leave overpayments he received from 2002 to 2005 was unwarranted.

114 The grievor contends that recovering the overpayments is contrary to clause 14.03 of the collective agreement and contrary to the doctrine of estoppel and that it is an unwarranted disciplinary sanction imposed without cause.

115 As corrective action, the grievor requests that the employer reimburse him for the overpayments.

116 In interpreting clause 14.03 of the collective agreement, I am charged with interpreting the wording to ascertain the parties’ intent.

117 In Canadian Labour Arbitration, 4^th edition, chapters 4:37 and 4:41, authors Brown and Beatty summarized the rules of interpretation that guide an adjudicator when interpreting a provision of a collective agreement as follows:

…

It has often been stated that the fundamental object in constructing the terms of a collective agreement is to discover the intention of the parties who agreed to it.

Accordingly, in determining the intention of the parties, the cardinal presumption is that the parties are assumed to have intended what they have said, and that the meaning of the collective agreement is to be sought in its express provisions.

In searching for the parties’ intention with respect to a particular provision in the agreement, arbitrators have generally assumed that the language before them should be viewed in its normal or ordinary sense unless that would lead to some absurdity or inconsistency with the rest of the collective agreement, or unless the context reveals that the words were used in some other sense.

…

118 In 2000, the DFO introduced PeopleSoft. However, the grievor chose to continue applying for vacation leave by submitting LAARs. There was no evidence adduced by the employer that employees were directed to use PeopleSoft. Therefore, the grievor’s decision to submit LAARs instead of using PeopleSoft is not an issue.

119 The grievor contends that it was Mr. Leung’s responsibility to forward the approved LAARs to HR (Exhibit E-2, bullet 4). I agree with the grievor that that should have been the procedure. However, Mr. Leung, whom I found to be a credible witness, testified that, on June 4, 2001, he advised the grievor to “… process [the LAARs] through HR yourself.” In my opinion, Mr. Leung’s openness and transparency in his testimony, his recognition that he should have taken a more proactive role in ensuring that the grievor’s vacation leave balances were correct and the fact that he had nothing to gain far outweigh the elusiveness the grievor displayed during his testimony and in cross-examination.

120 As a result, from 2001 to 2005, most of the vacation leave taken by the grievor was not entered into PeopleSoft. As the evidence indicates, when vacation leave credits exceed the maximum carry-over limit of 262.5 hours, they are automatically paid out by cheque. As such, at the end of fiscal years 2002, 2003, 2004 and 2005, the grievor was paid excess vacation leave hours for a total amount of $11,957.41.

121 The grievor’s representative argued that the wording in clause 14.03 of the collective agreement is clear, concise. His argument is that an employee, who was a member of the bargaining unit on January 26, 2006 (the date on which the Treasury Board and the PIPSC signed the collective agreement), is entitled to the amount of leave credited by the employer. He stated that the grievor took vacation leave at the employer’s request, but the vacation leave was not recorded into PeopleSoft. Therefore, the hours credited to him as of January 26, 2006, prohibit the employer from recovering the overpayments for those vacation leave credits.

122 This case highlights the kinds of absurdities that could result from a combination of bad facts and a strict interpretation of the collective agreement.   In this case, the grievor is requesting that the bad facts be used to make law, and I find that if I were to allow this grievance, it would be a case of bad facts making bad law. The grievor is arguing that regardless of the factual situation and how you choose to characterize it (fraud, negligence, wilful blindness or pure accident), the collective agreement gives him an unfettered right to keep the leave credits improperly residing in his leave bank. I do not believe that the parties intended that clause 14.03 be used by employees who seek to profit from administrative errors, howsoever caused, in the calculation of leave credits, and particularly not in the case where the error was at least in part the result of the employee’s own error.  As stated above, my role is to give voice to the parties’ intention and the grievor had failed to convince me that the parties would have agreed to include this clause in the collective agreement had the grievor’s interpretation been proposed as a contemplated outcome of inclusion.

123 There is a saying in law which says that good faith is presumed and that bad faith must be proven.  While this maxim is not normally applied to situations such as this one, its wisdom nonetheless comes to my mind in this situation.  The negotiation of a collective agreement must proceed on the basis that both parties are acting in good faith and indeed section 106 of the PSLRA confirms this. Mr. Churcher is requesting what I feel is an interpretation steeped in bad faith and he has failed to convince me that the parties had agreed or would have agreed to such an interpretation when negotiating the clause in question.

124 The intention of the clause is perhaps not clear at first blush, perhaps in part due to the fact that it (or a close variation thereof) has been included in the collective agreements of a wide variety of bargaining agents such as PIPSC, PSAC, CAPE, CUPTE and UCCO-SACC-CSN going back at least some twenty-five years. Any bargaining history related to this clause has long since been obscured by the passage of time.

125 However, in looking at article 14 as a whole, I do not feel that the clause is ambiguous or requires resort to anything other than common sense and the normal rules of interpretation.  The first three clauses in article 14 are clearly directed at employees and at protecting their legitimately acquired right to leave. Clause 14.01 protects employees who are either laid off or who die after having been granted more vacation or sick leave than they had earned by preventing the employer from recouping the excess leave.  This clause has fairness and compassion as its focus.

126 Clause 14.02 protects the rights of employees to receive statements of their leave balances by ensuring that they are entitled to receive a statement of their balances once each fiscal year.  In this way, they are able to verify their balances and to take timely action should an error be discovered.

127 Clause 14.03 clearly has as its intention the protection of an employee’s earned leave credits.  While the situations or circumstances under which this clause applies are not set out in the collective agreement, I cannot but believe that the parties never intended that it apply in all circumstances, even those involving fraud or wilful blindness.  Instead, I believe that clause 14.03 was inserted into the collective agreement to preserve the acquired rights of an employee to their accumulated leave credits when they change bargaining units, as was highlighted in the Williams case.

128 In Williams, the grievor was entitled to count his prior military service for the purpose of calculating his annual leave entitlements when he left the Canadian Armed Forces and became a civilian member of the Union of National Defence Employees, a component of the Public Service Alliance of Canada. He then wrote a competition and became an employee in the Federal Government Dockyards Trades and Labour Council (Esquimalt) bargaining unit, a bargaining unit in which the carry over of leave entitlements was not provided for. The adjudicator ruled that the annual rate of leave to which the grievor was entitled when he initially changed bargaining units was to be retained.

129 In the years prior to the placing of caps on accumulating vacation leave, this was a particularly precious right for employees.  As for the employer, it would have an interest in preserving and encouraging (at least to some degree) employee mobility. However, I need not, for the purposes of this case, decide all of the circumstances to which clause 14.03 applies.  Instead, my task here is to decide whether or not clause 14.03 applies to the present situation and I have found that it does not.

130 I find that clause 14.03 of the collective agreement exists to ensure that all properly acquired leave is credited to employees on the date the parties sign the collective agreement or when the employee changes bargaining units. That clause provides a guarantee that employees will receive and be credited for different leaves, which may include vacation, sick, paternal, maternity leave, etc., negotiated through the collective bargaining process. On the date of the signing of a new collective agreement, or on transfer to another bargaining unit an employee’s previous leaves credits are carried over.

131 I have concluded that the spirit and intent of this clause is not to lock people in to untenable situations but to protect the legitimate rights of employees.  In cases where, such as this one, the employee’s claim is not legitimate, no protection can be afforded by this clause.

132 I concur with the employer’s argument that the $11,957.41 in overpayment is a debt to the Crown and that, under subsection 155(1) of the FAA and the Pay Administration Guidelines, the recovery of this debt is not prohibited clause 14.03 of the collective agreement. I note that the net amount of the cheques cashed by the grievor from 2001 to 2005 was $9088.48 based on Exhibits E-17 to E-20. Therefore, I order the employer to reimburse the grievor $2868.93.

133 I dismiss the grievor’s allegation that the recovery of the overpayments is contrary to the doctrine of estoppel and that it constitutes an unwarranted disciplinary sanction imposed without cause. I have no evidence that the grievor was promised or assured that he was permitted to take more vacation leave than allowed by the collective agreement. I also have no evidence of a disciplinary sanction imposed by the employer toward the grievor.

134 For the above reasons, this grievance is allowed in part.

B. Second grievance (PSLRB File No. 566-02-2643)

135 The grievor alleges that the five-day suspension without pay imposed by Mr. Macgillivray was unjustified. As corrective action, he seeks to have all lost salary and benefits restored and to have his personnel file cleared of any references to the suspension.

136 I must determine if the five-day suspension without pay is justified and if so, was it warranted?

137 After carefully reviewing the evidence and arguments, I conclude that it was warranted, for the following reasons.

138 I accept that Mr. Leung contributed to the problem by not ensuring that the grievor’s LAARs were forwarded to HR, which was his responsibility. However, the grievor, a senior engineer responsible for multi-million-dollar projects, ought to have kept his own leave records. As stated earlier, Mr. Leung directed the grievor to forward his LAARs to HR, but the grievor chose not to, except on some occasions where he sent amended leave forms to HR.

139 The grievor testified that he had asked Ms. Kainz to look up his leave balances in PeopleSoft. Obviously, he had a password to allow her to enter PeopleSoft. In other words, he was familiar with the system and its capabilities and could have accessed PeopleSoft himself to verify his leave balances.

140 The grievor also testified that he had received cheques for travel expenses that were similar to the amounts of the overpayments and that that may have led to some confusion. However, the grievor’s lack of credibility is again questionable. In the public service, all government travel must be supported by the appropriate receipts (i.e., airfare, taxis, hotels, etc.). The grievor for his part had to provide the required receipts and sign the travel authority form to be reimbursed. He would then have known the exact amount of his reimbursement cheque and the time frame of the relevant travel.

141 The stub portions of the overpayment cheques state “pmt in lieu” multiplied by the number of hours. It could be argued for the 2001-2002 overpayment cheque in the amount of $2513.26 that the grievor may have been confused; however, after receiving overpayment cheques in 2002-2003 for $3946.52, in 2003-2004 for $1172.17 and in 2004-2005 for $2418.53, he should have, as a reasonable person, either questioned his supervisor, manager or HR as to why he was receiving those monies.

142 In 2005-2006, the grievor’s annual vacation leave allotment for his years of service was 187.5 hours. That year, the grievor took 392.5 hours of vacation leave. Mr. Leung emailed the grievor, stating that PeopleSoft indicated that he had 187.5 hours of vacation leave credits over the carry-over limit of 262.5 hours. The grievor responded that that it was his choice to take the 187.5 hours in cash, as opposed to taking it as vacation leave. His reason was that he had recently paid some hefty repair bills for his personal vehicles (Exhibit E-6). The grievor testified that that was a flippant response and an error on his part. Unfortunately for the grievor, it was that response that spurred the employer to investigate and reconcile his vacation leave as far back as 2001.

143 I am left with the impression that it was not a flippant response by the grievor but a calculated one based on proximity and chance to receive a monetary gain to which he was not entitled. The grievor took a risk that the undetected overpayments would not be discovered and that he would be paid as in the past.

144 It is my opinion that, by his own design, the grievor chose not to bring the overpayments to the attention of his supervisor, manager or HR. I conclude that it was not simply negligence on his part but wilful deceit.

145 Therefore, I find that, in the circumstances, the five-day suspension without pay is an entirely appropriate penalty for the grievor’s actions. I have no reason to lessen the penalty.

146 This grievance is dismissed.

147 For all the above reasons, I make the following order:

V. Order

148 The grievance in PSLRB File No. 566-02-754 is allowed in part. The employer will reimburse the grievor $2868.93.

149 The grievance in PSLRB File No. 566-02-2643, concerning the five-day suspension without pay, is dismissed.

July 6, 2009.

D. R. Quigley,
adjudicator